Factual and Procedural Background
On 22nd January 1988 in the Crown Court at The City before Judge Otton, the Appellant pleaded guilty to the rape and murder of two young girls, conspiracy to pervert the course of justice, and two further separate offences of indecent assault. He was sentenced to life imprisonment for murder, 10 years' imprisonment on each count of rape, and 3 years' imprisonment for conspiracy to pervert the course of justice and indecent assault, all sentences to run concurrently.
Following sentencing, the Secretary of State set a minimum term (tariff) of 30 years before consideration of possible release. After the Criminal Justice Act 2003 came into force, the Appellant sought a review of this tariff. On 1 August 2008, Judge Grigson, as the reviewing judge, specified a minimum term of 30 years less time spent on remand. Leave to appeal was granted by the full court.
The Appellant’s series of offences included attacks on young girls between 1979 and 1986, culminating in two murders involving rape and strangulation. The investigation involved pioneering use of DNA techniques, which linked the Appellant conclusively to the offences. The Appellant also engaged in a conspiracy to pervert the course of justice by having another individual provide a blood sample in his stead.
During sentencing, psychiatric reports described the Appellant as having a personality disorder of psychopathic type with serious psychosexual pathology, indicating he remained extremely dangerous. The trial judge and the Lord Chief Justice recommended substantial minimum terms, with the Lord Chief Justice expressing doubt that the Appellant should ever be released.
The Secretary of State set the tariff at 30 years, higher than the judicial recommendations, citing the seriousness of the offences, the vulnerability of the victims, the multiple murders, and the conspiracy to pervert justice. The Appellant applied for judicial review of the tariff under the 2003 Act, leading to the review by Judge Grigson.
Legal Issues Presented
- Whether the minimum term set by the Secretary of State breached the Appellant’s rights under Article 6 (right to a fair trial) and Article 7 (prohibition on retrospective penalties) of the European Convention on Human Rights.
- The proper legal approach and statutory framework for conducting a review of the minimum term under Schedule 22 of the Criminal Justice Act 2003.
- Whether the judicial recommendations from the trial judge and Lord Chief Justice amount to a "whole life order" or a different minimum term.
- The extent to which exceptional progress made by the Appellant in custody should reduce the minimum term.
- The applicability of prior case law and sentencing principles in the context of the statutory review process.
Arguments of the Parties
Appellant's Arguments
- The decision by the Secretary of State to set the tariff at 30 years constituted a breach of the Appellant’s rights under Articles 6 and 7 of the European Convention on Human Rights.
- The judicial recommendations should be treated as the starting point for the tariff review, and the Secretary of State’s higher tariff was unfair and retrospective.
- The review of the tariff should not take into account changes in sentencing practice or standards after the original sentence.
- The exceptional progress made by the Appellant in custody should be recognized by reducing the minimum term by two years.
Court's Response to Arguments
- The court rejected the argument that the judicial recommendations alone should govern the tariff review, emphasizing the statutory framework requiring the reviewing judge to consider both the judicial recommendations and the statutory guidance in Schedule 21 of the 2003 Act.
- The court held that the Secretary of State’s tariff decision does not violate Articles 6 or 7, as the review process cannot increase the minimum term beyond the tariff set by the Secretary of State, thereby preventing retrospective penalties.
- The court noted that prior case law cited by the Appellant did not support his submissions in the context of mandatory life sentences and the statutory review regime.
- The court accepted that exceptional progress can justify a reduction in the minimum term, consistent with legislative intent and prior decisions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Bamber |
Addressed issues common to minimum term reviews and sentencing recommendations. |
The court referred to this judgment for related principles and avoided repetition except where necessary. |
| R v Secretary of State ex parte McCartney |
Considered the effect of sentencing practice changes on tariff reviews. |
The court distinguished this case as relating to discretionary life sentences and found it inapplicable to the mandatory life sentence context. |
| R v Caines, R v Roberts [2006] EWCA Crim 295 |
Clarified the application of transitional provisions and the role of the reviewing judge under schedule 22 of the 2003 Act. |
Used to support the statutory interpretation that the reviewing judge must consider current sentencing guidance alongside judicial recommendations. |
Court's Reasoning and Analysis
The court began by clarifying the statutory framework under Schedule 22 of the Criminal Justice Act 2003, which governs the review of minimum terms for mandatory life sentences. The reviewing judge must consider the seriousness of the offence, any relevant sentencing reductions, the notified minimum term, and the judicial recommendations from the trial judge and Lord Chief Justice, alongside the general principles set out in Schedule 21.
The court rejected the notion that the judicial recommendations alone fix the minimum term or that they equate to a whole life order. It found that the trial judge and Lord Chief Justice did not unequivocally recommend a whole life tariff but rather set minimum terms reflecting the Appellant’s dangerousness and the gravity of the offences.
The court emphasized that the Secretary of State’s tariff acts as a ceiling that cannot be exceeded on review, thus protecting the Appellant from retrospective increases contrary to Article 7 of the European Convention on Human Rights.
The reviewing judge’s role is a fresh assessment that balances the statutory guidance with the judicial recommendations and the circumstances of the case, including any exceptional progress made by the prisoner.
Regarding exceptional progress, the court found that the Appellant had made outstanding contributions while incarcerated, including educational achievements and specialist work benefiting others. Although the reviewing judge found it inappropriate to reduce the tariff significantly given the horrific nature of the crimes, the court accepted that a modest reduction was warranted to give practical effect to this progress.
Holding and Implications
The court’s final decision was to set the minimum term at 28 years imprisonment, reduced from the previously specified 30 years to reflect the exceptional progress made by the Appellant in custody. The allowance for time spent on remand remains unchanged.
The life sentence itself remains in full effect, meaning the Appellant cannot be released unless and until it is deemed safe for the public. The decision does not establish new precedent but clarifies the proper statutory interpretation of Schedule 22 reviews and the interplay between judicial recommendations, the Secretary of State’s tariff, and exceptional progress considerations.